Vail, Vail Resorts begin presenting cases in condemnation hearing for contested East Vail site
Parties aim to prove differing motives for site's condemnation
Almost one year to the day after Vail Town Council voted to condemn the Vail Resorts-owned parcel in East Vail, the matter made its way before the Eagle County District Court on Monday, May 8, for a three-day immediate possession hearing.
On Monday and Tuesday, the town of Vail and Vail Resorts presented their cases to Chief Judge Paul Dunkelman, who will determine whether the town has the right to condemn the 22.3 acres of land just north of Interstate 70 in East Vail. If the court rules in favor of the town, a valuation hearing would go on during four dates scheduled in September. Dunkelman’s decision is expected to be handed down sometime in June.
Before each side gave opening remarks on Monday, Dunkelman expressed frustration that the matter made it before him. The two parties had previously been going through court-ordered mediation in an attempt to reach a negotiation.
On Monday, Dunkelman opened by saying he “didn’t think we were going to get to this hearing,” adding that it was a “negative day for the community” as two of the community’s “most influential entities” continue with a “major lawsuit against each other.”
“You’re forcing the community to pick sides,” Dunkelman said, adding that the message being sent by taking the matter to court was not a good one.
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Over the first two days of the hearing, both sides presented and entered evidence into the court record, calling a number of witnesses to the stand.
The town of Vail’s defense called Vail Mayor Kim Langmaid as its first witness, with Langmaid remaining on the stand for the majority of the first day. On the second day, the town called Kristen Bertuglia, the town’s environmental sustainability director, Sean Koenig, the town’s GIS coordinator, and Bill Andree, a retired district wildlife manager from Colorado Parks and Wildlife. On Tuesday, Vail Resorts’ defense called its first witness, Timothy Nelson, president and owner of 4171 Design who was contracted by the corporation to analyze entitlements and land use in the area.
For the sheep
Within the condemnation proceedings, the burden is on the town to prove that it has a legal right to condemn the property.
In her opening remarks on Monday, Katherine Vera, representing the town, stated that the town was seeking to condemn the undeveloped East Vail “for open space” to preserve wildlife habitat.
She stated that in its case, the town would prove that the town has the authority to do so, that it is taking the parcel for a public purpose or use, that it can prove that open space is the right use for the land, and that it acted in good faith to negotiate with the corporation but could not agree on compensation.
“This case is not about public pressure or an aversion to workforce housing,” Vera said on Monday, later adding it was “about any development being inappropriate for this specific site.”
During the trial’s first day, Langmaid took the stand for the majority of the day and repeatedly stated that the town had no other reason to condemn the land other than the bighorn sheep and to preserve the sheep’s habitat.
During the town’s presentation of evidence, it sought to bring forth testimony and evidence that demonstrated that the parcel in question has long been identified as “environmentally sensitive,” and as suitable for open space designation. It also presented evidence to support that the town acted in good faith in negotiations with Vail Resorts.
During the second day of the trial on Tuesday, the town began to establish the “necessity” of its acquisition of the site for its stated purpose. During Andree’s testimony, he shared his opinion based on his 37 years of expertise as the area’s district wildlife manager with Colorado Parks and Wildlife. He testified as to why the site was a “good” and “suitable” sheep habitat as well as to what potential indirect impacts of the development could be.
“It’d be a downfall of that sheep herd,” Andree said.
Acting in bad faith
On the flip side, Vail Resorts argued that this is “a case about government overreach and abuse,” as John R. Sperber, representing the corporation, stated in his opening remarks Monday.
Further, he stated that the condemnation was not about bighorn sheep but rather because some of the residents didn’t want this project in their neighborhood. The condemnation was in “reaction to something it (the town) doesn’t like,” Sperber said. In its case, the resort company’s burden is to demonstrate the town acted in bad faith or fraud.
Sperber added that in its case, the corporation would argue that the case has five “classic signs of pretext and bad faith.” These included significant opposition to the owner’s project, inconsistent government actions, lack of nexus between the taking and the allied purpose, bad faith efforts to control or comply and post hoc justification for condemnation.
During much of the corporation’s cross-examinations, the lines of questioning centered around whether there were ulterior motives — including appeasing vocal, influential residents — for the town’s condemnation as well as on what the town’s positions have been on the site and area over the past five years.
The corporation’s defense argued that the town’s argument that it is seeking to acquire the subject property for open space was “inconsistent” with the town’s prior positions on the property, and presented its evidence to that effect.
On Tuesday, with Nelson on the stand, Vail Resorts’ defense looked at other developments in the area and within the stated sheep habitat. This included the expansion of the town’s own public works facility, Booth Creek Fall trailhead improvements, the redevelopment and development of “luxury homes,” and more in the area. Its presentation compared the town’s land use, entitlement, and environmental impact processes on these properties as well as on the East Vail site.
Nelson’s testimony purported that there has been inconsistent treatment of the East Vail site in relation to other projects in the bighorn sheep habitat.
On the hearing’s second day, Dunkelman acknowledged that the “hard thing about this case,” is that “every piece of evidence can be twisted in any direction.”